Zeitschrift Aufsätze

Frederik Dhondt (Ghent)*

Charles de Gaulle, Anti-Hegemonic Discourse and International Law#


1French President Charles de Gaulle (1890-1970) was a controversial figure on the international scene during the Cold War. He steered an original and provocative course bordering on independence from the bipolar structure of post-1945 world politics. De Gaulle’s combination of national independence and a global appeal to state sovereignty casts a long shadow over foreign policy debates in France and in Europe. Although his references to the long run of geopolitics, to history or to “Grandeur” seemed to run against the course of history for many contemporaries, de Gaulle’s discourse can be linked up with timeless normative understandings between states. Self-determination, national legitimacy and independence are the precondition to a system whereby state consent creates norms.

2The present contribution concentrates on the legal arguments employed to support de Gaulle’s audacious speeches, travels and press conferences. My analysis aims to complement classical diplomatic history. Law is seen as a vector of consensus, used to attract partners in a horizontal normative environment. During the Cold War, vertical integration within ideological blocs was a consequence of military and strategic necessity. However, the balance of nuclear deterrence created political leverage for second-rank states, conformable to the fundamental legal values of liberty and equality as essential components of sovereignty within international society. Sovereignty can be seen as a pretext to undermine collective structures, but is a recall of states’ double quality as both legal subjects and norm creators. The common liberty of all actors in the international arena is a bulwark against top-down descending unification. Bottom-up legitimated notions of justice and law resurface when we analyse primary sources in detail. Pragmatic political discourse and normative legal discourse are constantly cross-disseminated. International relations are not legal at an instant and political at another, but bear the same, mixed taint at every instance.

3This article starts by sketching the implications of Second World War on the traditional European system (A) and will then address the three main areas of French foreign policy in the 1960s (B): Political intergovernmental cooperation, supranational economic integration, and the nature of the transnational military and strategic partnership.

A. International Legal Order in the 1950s and 1960s

4For European states, the end of the Second World War had fundamentally changed the arena. Whereas European powers could delineate their major international relations in ‘classic’ European diplomatic schemes within the border of the continent or their overseas acquisitions, the international system had decisively developed into a global one. Europe was but one of the international theatres for global powers. Moreover, the USSR and the United States, who emerged as the strongest forces after the Second World War, had strategic interests on the continent, but were not part of Western Europe. Decision centres had moved away from Paris, London, Vienna or Berlin to Washington and Moscow. Consequently, agreements on armament reductions or nuclear non-proliferation were decided by the two superpowers, and were a sign that the other sovereign nations were out of the game. France1 or China2, permanent members of the 1945 big power club, did not accept this. The Federal Republic of Germany, on the other hand, could not afford to oppose such a text, and had to accede to the instrument (17 August 1965).

5Consequently, European nations as France, Britain or Germany, in full disarray after the destruction and exhaustion caused by the war, had to reconstruct their international and legal discourse from a position hitherto unknown to them, that of second-rank powers3. The European management system of international affairs seemed to have utterly failed, perceived as the result of centuries of war, occasionally interrupted by balance-of-power diplomacy4, or channelled into colonial expansion5. Public opinion was more and more averse to military confrontation6 and the former European possessions or protectorates on other continents made an appeal to popular sovereignty and self-determination. Moreover, as the Cold War set in from 1947 on, Europe was divided according to the lines of occupation at the end of the Second World War. International organisations around the two antagonist superpowers followed. The continent’s security was thus divided between associations of states anchored across the Atlantic, or behind the Iron Curtain.

6In general internationalist doctrine, the end of the Second World War sounded as a unique opportunity for the theories of Georges Scelle7, Hersch Lauterpacht8 or Hans Kelsen9, who advocated the reining in of traditional sovereignty to the benefit of international community10. However, a full integration of the national and international legal orders, and the development of supranational institutions, capable to ensure legal protection to the individual11, was limited to the European continent only. At the level of world politics, realism in political science could go together with a realist approach to international law12. To paraphrase Antonio Truyol y Serra’s course at the Hague Academy in the late 1950s, a sociologist could treat the international system in terms of a society. International community, however, was reserved to the prophet13.

Section 1: A Bipolar World Order

“Ce machin qu’on appelle l’ONU”

Charles de Gaulle, 10 September 196014

I. Leviathan tamed ? The UN System

7The political divide in the post 1945 world, which was gradually installed from about 1947 on15, was posterior to the installation of universal international organisations, mostly the United Nations and its sister organisations. The principles governing the functioning of these bodies required a high degree of abstraction, a corollary of the need for general consent16. The United Nations security system was designed to freeze and protect the big powers’ interests. Consequently, the emphasis on sovereignty, equality and state consent, three cardinal factors in the classical European law of nations, was preponderant17. At the same time, this reinforced and consolidated secondary or small powers’ rights as sovereign states18.

8If any development drew a strict line between the early modern state system and the post 1945-era, it was the outlawing of war in art. 2 (4) UN Charter19, according to which the “Members of the Organisation shall refrain, in their international relations from the threat or use of force against the territorial integrity or political independence of any state20”. This prohibition on the use of force in the settlement of disputes, declared a rule of customary international law by the ICJ in the Nicaragua-case (198621), seemed the achievement of attempts to achieve “peace through law”, celebrating the achievements of the process of juridification in a state of “law through peace22”. The UN Charter restricted the right of any sovereign state to solve quarrels “par une bonne guerre” to the case of self-defence (art. 51 UN Charter23).

9Sanctions for transgressors of this rule, however, were still as limited as in the 18th century24. The Security Council, composed of five permanent members, could patrol the world, but only in case of unanimity between these very members who were all parties to the Cold War. From the Korea War on, the UN Security System was in temporary deadlock and paralysis, due to the USSR’s systematic abstention from the Security Council25.

II. Bipolar confrontation

10As the Cold War set in, both the United States and the USSR built up international organisations corresponding to their ideological and geopolitical power ambitions26. The USSR argued from a strict theory of sovereignty and non-intervention. The UN system was seen as legitimate, since it represented all states on an equal basis. Yet, at a regional level, international organisations were classified as either socialist or Imperialistic, and seen as vehicles in an ideological battle. As the Cold War became hot in Latin-America or Asia, Soviet doctrine condemned US intervention. However, the general customary principle of non-intervention did not apply in Eastern Europe, where the USSR crushed dissidence in Hungary (1956) or Czechoslovakia (1968), thanks to a supposed regional custom permitting intervention whereas it had been outlawed for the rest of the world, as an application of the lex specialis-principle27.

11The nuclear stalemate inherent to the armament of the two big powers, paradoxically, reinforced the protection of minor powers. If an attack means total destruction, any armed attack becomes highly improbable28. States with proper means of nuclear deterrence, and thus less dependent on the two superpowers, could therein act with relatively greater freedom. Conversely, states in a precarious situation, such as West Germany, closely watched the “balance of power” in armaments. By contrast to Old Régime or 19th century diplomacy Concert of Europe- diplomacy, the metaphor did not serve to elaborate a legal structure any more, but became a symbol for a military expenses race29.

Section 2: Europe, or the New Diplomacy of Regional Institutions

12Due to the very (political) weakness of the Charter system, which maintained a Big Power-management of the global equilibrium, the UN Charter left room in its article 51 for collective self-defence30. Thus, regional security organisations could fulfil every state’s right to defence, by pooling more states together in a permanent defensive alliance. For the Atlantic bloc, NATO became the key organisation in 194931.

I. The consequences of the Cold War: reintroducing Germany

13The immediate aftermath of the war made a reconciliation with the wiped-out German state difficult. France concluded a separate alliance with Britain and the USSR32. European defence was organized against the aggressor of the past war, as the Treaty on the Western European Union explicitly stated33. It took until 1949 for the NATO-treaty to be signed34.

14From the Soviet point of view, European economic integration, a sidekick of the bigger American Imperialistic design35, was bound to lead to the reaffirmation of an aggressive economic and political revival of West Germany36, or merely served the monopolies of transnational corporations to the detriment of the working class (read: national Communist parties in Western Europe37). The reintroduction of German military elements in NATO, called for by the Americans during the Korean War, reinforced this impression: the EEC and NATO were two equal parts of a strategy to attack the socialist nations: West German monopolies and the American military had concluded an alliance38. For the Russian-led bloc, only the UN-organs had legitimacy to act on the international stage39.

15From the legal point of view, the statute of Germany was a cumbersome affair. Defeated on 8 may 1945, its sovereignty was not restored until the German unification took force on 15 March 1991. Neither the Federal Republic in the West nor the Democratic Republic in the East40 were sovereign states41. The partitioned former Third Reich capital Berlin, under a four party-regime of the former wartime allies, or the modification of the Eastern border to compensate Poland (a quarter of pre-wartime German national territory42) could count as symbols of this uneasy situation. The Federal Republic claimed to represent the former German state in its 31 December 1937 borders, well until the end of the 1960s43. As well West as East Germany started from a handicapped position on the international level. Recognized and acting in international organisation, they were still nonetheless “non-sovereign entities”. Their decisions depended on the agreement of the quadripartite conglomerate of France, Britain, the USSR and the US.

16Bringing West Germany in the North Atlantic Treaty Organisation, as happened in 195444, implied a considerable concession. The Federal Republic had to renounce the production or use of atomic, biological or chemical weapons45. There again, even if the financial or industrial capabilities would have been present, Germany would have to fight a diplomatic battle without end to build nuclear weapons itself, as Britain and France could do freely. Moreover, West German diplomacy had to get its international partners to abstain from any recognition of the DDR. The so-called Hallstein-doctrine implied that West Germany posed the non-recognition of East Germany as a precondition in diplomatic affairs46.

II. “Entrepreneurs of Europe47” and traditional legal science

“Tandis que les hommes d’État débattent, sans ménager le poids de leur autorité et la fougue de leurs convictions […] les juristes […] s’emploient à la naissance, discrète mais lourde de promesses, d’un droit européen.”

Michel Gaudet, 196348

“Rien n’est possible sans les hommes, rien n’est durable sans les institutions.”

Jean Monnet, Mémoires49

17Although it might seem tempting to interpret the legal history of European integration with hindsight, the emergence of a legal discourse advocating a separate legal order was far from evident to the majority of European continental jurists. Resistance to the theory of supranationalism came both from national public law50 and public international law. Mainstream internationalist doctrine continued in line with the post-World War I consensus, emphasizing consensualism (as expressed in the PCIJ’s Lotus case (192751) and –thus- the precarious legal personality of any institution built on agreement between states52. State sovereignty was unlimited, save for explicit limitations agreed to by the states themselves53. Looked at from a distance of half a century, the emergence of key concepts as primacy or direct effect of European law seems evident54. Yet, the opposition we will describe in the next part (B) between the French political discourse, on one hand, and the vertical integration of the Atlantic world, on the other hand, was not merely one between politics and the legal professions55.

18 Instead, both a “weak” and a “strong” programme on the Rome Treaties lived in academia56. The former saw the treaties creating three European communities as a coincidental whole of four separate international instruments, organising coexistence between states57. The Commissions’ legal services, backed by business lawyers acting for (mainly American) multinational corporations58, advocated that the treaties formed a constitutional bloc, installing a hierarchy between two separate legal orders, the national and the supranational. The traditional internationalist conception saw European community law as a political law, whereby political agreements between equal and sovereign partners continued as the sole source of law. Yet, Institutional59 discourse, produced by the organs created by the treaties, saw the judge, and in the case of competition, the administration, as law creators themselves. This, in turn, had as a consequence that transnational economic activity would create an ever closer union de facto, whereas the traditional conception saw this as the mission of politicians and high government officials within each state. Finally, unification through the renvoi-procedure of art. 177 EEC allowed to bypass intergovernmental and national political procedures to let European law prevail in concrete cases60. In other words, the European jurist’s interpretative habitus would be shaped in Brussels and Luxemburg61, away from the legicentrism of the national legal order, where top-down law-making prevailed62.

19 During the critical formation years in the 1950s, the legal advisors at the Auswärtiges Amt in Bonn63 had strong ties with future commission president Walter Hallstein, who taught at the University of Frankfurt: the legal historian and diplomat Wilhelm Grewe (1911-200064), future secretary of state and Federal President Karl Carstens (1914-1992, also professor at the University of Cologne65), Carl Friedrich Ophüls (1895-1970, diplomat and professor of international law at Frankfurt66), Ernst Steindorff (°1920, Hallstein’s former assistant, and professor at the University of Munich67) and Hermann Mosler (1924-2001, professor at the University of Frankfurt and director of the Max Planck Institute for International Law and Comparative Public Law, future ECHR and ICJ judge68). From the French side, the Quai d’Orsay and traditional high administration provided the ECSC and EEC with its finest civil servants: Emile Noël (1922-1996), former chief of cabinet to Prime Minister Guy Mollet (1905-1975), as Secretary-General of the Commission or Michel Gaudet (1915-2003), head of first the ECSC and then the EEC’s legal service (whose numbers rose from 12 to 80 in the sixties69). Not surprisingly, the European institutions’ working languages were French –predominantly- and German70.

20The following part, which deals with de Gaulle’s opposition to the ongoing enterprise of unification through law, shows the resilience of the alternative narrative. Traditionally, normative indeterminacy (or: the vagueness of treaty clauses agreed between states) provided diplomats and their legal advisers with a mandate to elaborate a hybrid politico-legal discourse. The European integration process, however, delegated this function to the court71.

B. L’embêteuse du monde : contesting American hegemony

“Nous ne voyons pas d'inconvénient à votre puissance, car sans elle, nous serions exposés à une hégémonie irrésistible des États-Unis. De même nous ne voyons pas d'inconvénient à la puissance des États-Unis, sans laquelle nous serions probablement exposés à l'hégémonie soviétique.”

Conversation de Gaulle-Breznjev, 21 juin 196672

“Nous ne voulons pas d’intégration militaire, politique, économique, monétaire, avec les Américains, quoique nous voulions rester leurs amis.”

Conversation de Gaulle-Kiesinger, 14 January 196773

21Initially, at the end of the War, France concluded a bilateral alliance with the Soviet Union74, in order to balance the combination between Britain and the United States, and to acquire a more independent standing. De Gaulle explained this as “un impératif catégorique de la géographie, de l’expérience et du bon sens75”, reminiscent of 18th or 19th century Franco-Russian diplomacy.

22Yet, in the 1950s, the Fourth Republic cooperated in the demilitarisation (= end of the military occupation in the French, British and American zones in West Germany), coupled with the insertion of the Federal Republic into NATO. This rendered France suspect in the eyes of Stalin and Vyshinsky76. At the regional level, the 1962 Fouchet Plan77 was seen as “directed against the Soviet Union and the countries of the socialist camp78”, just as the creation of a joint European (EEC + EFTA) or Trans-Atlantic (GATT79) market was a threat to the Soviet economy80. Dominated by security matters, the USSR’s interpretation of the EEC did not go further than statements on the organisation as “an instrument of the Cold War and the Holy Alliance against the working class, the socialist system and the developing countries81”. Only in 1972 did the USSR recognize the EEC as a subject of international law.

23Whereas the American nuclear force had provided protection for Europe in the first decade of the Cold War, the situation had changed by the end of the 1950s82. Soviet nuclear weapons could attain American territory thanks to the development of long-range-bombers. The effective use of nuclear power thus became much less likely: “No American politician would risk the destruction of his own cities to stop a Soviet advance in Europe”83. Consequently, Europe had to turn to other solutions for an effective and certain protection.

24When Charles de Gaulle returned to power in May 195884, he was seen as a nationalist leader with very little regard for the new international organisation85. The failure of the European Defence Community, the initiative designed to pool the standing armies of France, Britain and Germany into a supranational force, was attributed to his opposition86. In opposition for the whole of the Fourth Republic87, de Gaulle had attacked the Treaties of Rome establishing the EEC and Euratom, concluded in March 195788, barely a month and a half before his return to power. The “Adenauer-Schuman”-era, which had seen the birth of the ECSC and the integration of West-Germany into NATO, was closed89. Britain hoped the new French chief of government would renege his predecessors’ engagements in the Treaties of Rome90.

25Yet, de Gaulle’s action would turn out decisive for the consolidation of the European Community: “on a dit que ceux qui ont signé le traité de Rome ne l’auraient pas appliqué, et que le général de Gaulle ne l’aurait pas signé mais l’a mis en application91”. He saw the Common Market as essential to European organisation, since it allowed for the controlled development of West Germany92. Irrespective of the factual failure of his political designs, the French President obtained the supranational organization of the Common Agricultural Policy93. Moreover, de Gaulle, son of a history teacher, tried to link Europe’s past to a multipolar message for the future94.

26Simultaneously, the economic revival of Western Europe, triggered by American help, made France less dependent on its former colonial markets. With the other continental powers no longer as competitors, it could look for a new partnership. De Gaulle openly teased the United States, who had reproached France its war in Algeria. In February-March 1964, Nikolaï Podgorny, president of the USSR’s Soviet, visited Paris. Directly afterwards, de Gaulle went to Mexico (15-24 March). Half a year later, to Latin America, qualifying Fidel Castro as a Latin-American nationalist95. In March 1965, France and the USSR agreed to jointly develop colour television (SECAM-standard)96. A year later, de Gaulle spent 12 days in Russia, orated before a million people, and installed a structural cooperation, as if the Entente Cordiale, the 19th century alliance behind Germany’s back, had returned97. A year and a half after the beginning of systematic US bombardments in the French former colony Vietnam98, de Gaulle castigated the aggressive policy of the hegemon in his Pnom Penh discourse (30 August 1966. The US did not understand that never: “les peuples de l'Asie se soumettent à la loi de l'étranger venu de l'autre rive du Pacifique, quelles que puissent être ses intentions et si puissantes que soient ses armées99.” France had shrugged off its former role as colonial power100, and took the role of “morale Führungsmacht für die dritte Welt101”. Whereas the United States had criticized the Anglo-French intervention in Suez or the Algerian War, de Gaulle projected the image of an Imperialist state on a nation confident on its historical credentials as the first post-colonial state102.

Section 1: Two, Three, Six, or One ? “La Grandeur par l’Europe103

I. Franco-German Friendship, A New Balance for Europe104 ?

“Le traité franco-allemand n’avait pas été conçu seulement pour sceller la réconciliation des deux peuples. Devant les réticences de nos partenaires du Marché commun à s’engager sur le plan politique, il devait servir aussi de base à une union franco-allemande possédant ses vues, ses idées, sa politique.”

Couve de Murville, 7 July 1964105

“Les traités sont comme des jeunes filles et des roses: ça dure ce que ça dure. Si le traité allemand n'était pas appliqué, ce ne serait pas le premier dans l'Histoire.”

Charles de Gaulle to the UDR-parliamentary fractions, 3 July 1963106

27Having arrived in power as Prime Minister in 1958, Charles De Gaulle personally cancelled a trilateral agreement between France, the Federal Republic of Germany, and Italy. The three countries had teamed up in 1957 to jointly produce nuclear weapons, confirmed by a 1958 co-financing agreement on an isotope separation machine at Pierrelatte (France)107. This was hard to reconcile with the Federal Republic’s 1954 renunciation to ABC weapons108. Instead, De Gaulle offered Adenauer a separate bilateral cooperation, and, at the same time, courted Macmillan and Eisenhower for a tripartite directorate in NATO109. This last step meant that France would render the other Western European partners dependent on her, and at the same time obtain a joint veto with Britain on the use of American force110. Britain, in the meanwhile, had turned away from France, signing a bilateral agreement at the Bahamas-summit late 1962111.

28De Gaulle’s schemes for European integration saw Franco-German cooperation as the logical reaction to American-led integration of the Western bloc112. British-American separate meetings had irritated Konrad Adenauer as well113. Yet, from a German perspective, the French plans were ambivalent. On one hand, they could provide an alternative to complete dependence on American force114, as the United States were shifting their priorities to Asia115. Yet, on the other hand, they might give the USSR the impression of a divided –and thus vulnerable- Western bloc, and lure the United States into isolationism116.

29For America, paying for 350 000 troops on the ground in Europe was an expensive affair117. Robert McNamara (1916-2009), Kennedy’s Secretary of Defence, openly advocated a “flexible response” strategy from 1962 on118. This implied that the United States would determine in which circumstances the USSR would sufficiently have altered the balance of power between the two blocs, to use nuclear firepower. Anything below this threshold would remain in the realm of conventional defence. Consequently, the European allies would have more to say, if they drove up the number of their own forces119, diminishing the financial burden for the United States120. Yet -in spite of Kennedy’s rhetoric on a Grand Design or a new Partnership121- in case of a war, for Germany in particular, this could imply a penetration of enemy forces into its territory for a considerable distance122.

30Adenauer, to whom war meant attacks on Frankfurt or Munich, or battles behind the Elbe, Weser or Scheldt123, and not theoretical confrontation on another continent, thousands of kilometres away, feared Washington might be tempted to conclude an agreement with the Soviet Union, at the expense of a divided Germany124. Logically, Adenauer turned to de Gaulle, albeit in a balancing act between Washington and Paris. The Chancellor relied on American diplomats and politicians active in the preceding decade125, with whom he had built a relation of confidence, e.g. John McCloy (1895-1989)126 or Dean Acheson (1893-1971)127, and simultaneously constructed a personal friendship with de Gaulle, from his 1958 visit to Colombey-les-deux-Églises on128. Conversely, de Gaulle never questioned the fundamental Franco-American alliance129.

31On 18 July 1961, the heads of government of the Six EEC member states solemnly declared their intention to enact the Treaties of Rome’s intentions to found a political union, through the creation of a commission, under the presidency of the French diplomat Christian Fouchet130. From the beginning on, the question of political union was intertwined with that of British accession. Britain had stayed out of the ECSC in 1951, both since it had important commercial relations with the Commonwealth-countries, and because it preferred the transformation of the Organisation for European Economic Cooperation to a genuine pan-European free trade zone131. Both the Benelux countries and Germany were in favour of a narrow cooperation with a prospective new big member state, which would serve to balance French influence.

32France, on the other hand, was eager to push through plans for a union of European states, encompassing the existing institutional structures (Council of Ministers, Commission, Parliament, Court of Justice). The European Political Union would constitute an umbrella over the Economic Communities. The European Commission would not have competence in the Political Union’s matters, but instead be replaced by a purely administrative organ132. Two organs would be necessary: a Council, consisting of the heads of state and government and ministers for foreign affairs133, seconded by an administrative Secretariat. De Gaulle opposed the latter institution, since it suggested a taint of supranationality134.

33In practice, the Council, operating as an intergovernmental organ and subject to the rule of unanimity, would have the residuary competence and thus become the prime mover for any new European policy135. In other words, whereas the proponents of economic integration saw the fusion of the sui generis institutions of the three Communities as the spearhead of European Union, the French tried to proceed the other way round. Council of Ministers, Commission and Parliamentary Assembly136 would first be subjected to the intergovernmental Council, to be merged in an ulterior phase137. The primacy of the intergovernmental modus operandi had considerable consequences. If a new policy did not meet with unanimous agreement, it would either have to be carried on outside the European institutional framework138, or would necessitate the opposing country’s deliberate absence, in analogy with the USSR’s abstention in the UN Security Council139. In essence, France and Germany tried to avoid a formal, individual veto by the smaller member states, but, instead, tried to retain an implicit joint veto by the major powers140.

34Again, in the French view, the problem of British accession would be solved by distinguishing membership of the (political) European Union from the (economic) European Communities, the latter being a precondition to the former. Consequently, Britain could adhere to the EEC, if the Political Union would have taken over the bulk of the integration process, to possibly find the door of the main organ, the new intergovernmental international organisation, shut141. The central role of law in the European integration process through the Court consequently risked to be reined in, as the Luxemburg judges would not have competence over the structures responding directly to the organs of the European Political Union142. Moreover, the Political Union would be financed by member states’ contributions, without interference of the Parliamentary Assembly143, whose role was finally reduced to the screening of an annual report submitted by the Council144.

35The Plan was damned. France’s emphasis on sovereignty and on an institutional two-track between European Economic Communities and Political Union was irreconcilable with the other member states’ views, who saw the existing Communities as the only possible framework for an enlargement of their cooperation145. Even for its most convinced sponsors within the EEC, British accession was tied to a pure acceptance of the acquis of European integration by the British (‘ohne Reserve’146). By contrast, sensitive issues as agriculture, coal and steel, textiles or voting rights in the Council of Ministers would provide substantial negotiation issues147. Yet, even if the Netherlands and West Germany abandoned their initial precondition about British EEC-membership148, the institutional aspects of the French proposal inevitably backfired149. The intergovernmental Grand Design was stalled.

36Consequently, Adenauer suggested to leave the European Political Union in suspense150 and to move on with Franco-German cooperation, in a classical bilateral treaty, outside the Communities’ legal framework.

37Horst Osterheld (1919-1998)151, Adenauer’s chief adviser in foreign affairs, feared for a complaint with the Federal Constitutional Court in Karlsruhe against a too exclusive Franco-German pact152. Yet, the battle was fought in the CDU fraction, and not in court: Adenauer’s party compelled the Chancellor to insert a preamble153 radically opposite to the actual aims of de Gaulle: Germany reaffirmed its ties with the US, and the aim to admit Britain to the EEC154.

38Outside of Europe, De Gaulle’s ideas had more appeal. According to Chinese archives, the multipolar discourse provided the “intellectual justification and foundation” for Mao’s rapprochement with France155, culminating in the recognition of the PRC on 27 January 1964, an act condemned by both the United States and the Federal Republic of Germany156. Frustrated as France with the Limited Nuclear Test Ban Treaty, and annoyed by Soviet rivalry for dominance in Central Asia, Mao turned away from support to Algeria or Indochina, two very sensitive arena’s where he confronted France157.

39Going out into the wider world, from which it had retreated as a colonial power, France now had “bargaining power” between the Communist bloc and the US158. France had succeeded its decolonisation of Algeria159, and could purport to play the role of impartial mediator. Yet, the margins were reduced, as concessions America made or military actions undertaken in one sphere of the globe, could have their repercussions in the theatre most vital to France: Europe160.

40British accession was largely conditional to a choice of the EEC over the Commonwealth161. At the time of the Schuman-Monnet-plan, Britain had declined invitations to join162. Likewise, transatlantic economic integration and the EEC were two different processes163. De Gaulle saw Britain as a bridgehead linking these two processes, and well to the detriment of the latter164. Finally, the legal framework of the Communities was used by de Gaulle to force Britain to choose the EEC over its other engagements, such as EFTA:

41“On a fait la Communauté des Six, d’ailleurs sans moi, on aurait pu faire autre chose : une zone de libre-échange européenne, qui aurait peut-être mieux valu. Mais c’est la Communauté qui a été faite avec ses règles et ses conditions et qui a été une réalisation pénible. Là-dessus, vous arrivez. Comment allez-vous être là-dedans ? Mettez-vous à notre place165.”

II. Erhard, or desilussion

42De Gaulle’s Grand design to form a Franco-German tandem leading the Six on an independent and “truly European” course failed. As Ludwig Erhard took over the Bundeskanzleramt in 1963, Germany firmly chose Washington over Paris as its privileged partner166, symbolised by the personal sympathy between Lyndon Johnson167 and the new Chancellor, who met already in December 1963, and the ensuing commercial weapons agreement (5 November 1964). This reflected a fundamental difference in political ideas. Whereas De Gaulle (or Adenauer168) firmly camped on traditional high politics169, Erhard, “Father of the DMark” saw the economy as the most important field170 and relied completely on the United States for defence171. De Gaulle’s political and legal positions were incomprehensible to him172, and were seen as the causes of transatlantic trouble173. In this respect, Erhard echoed American interpretations of rising nationalism in Europe174 or the perceived inadequacy of the nation-state with regard to 20th Century problems175, leading e.g. Dean Acheson to qualify British insistence on a national nuclear defence as “English Gaullism176”. De Gaulle, in turn, found Erhard had no original political opinions, and seemed at a loss to construct his foreign policy177.

43For Erhard, de Gaulle maliciously kept Britain and the EFTA countries at a distance178, contrary to German economic interests179. The German Chancellor abhorred of EEC bureaucracy180 or political bargaining and aspired to a “functional economic integration of all free countries in Europe181.” This is a fundamental difference between French and German conceptions. Whereas the latter saw Atlantic and economic integration as a pathway to prosperity and progress, the former adhered to a revival of nationalism, or, popular legitimacy for sovereign states, which would inevitably lead to different outcomes around the world, and thus to a multipolar world182. For Erhard, who made a staggering career after decades of relative discretion as a university professor, 1945 had been Stunde Null for the world as well183. De Gaulle, on the other hand, saw a continuous history of Europe, and recurring patterns in geopolitics as the main mover of foreign policy184.

44As German-German questions were concerned, France steered on the course of détente185, aimed at a consensual end to the Cold War. Yet, for the Federal Republic, talks with the “Sovietische Besatzungszone” were much more delicate. In the follow-up of de Gaulle’s NATO-decision, Foreign Affairs minister Maurice Couve de Murville bluntly declared to his German colleague Gerhard Schröder186 that:

45“Deutschland ja nicht nur geographisch im Zentrum Europas liege, sondern auch im Mittelpunkt der europäischen Probleme. Frankreich könne hierzu allerdings nichts tun. Da lege Wert auf die Entwicklung seiner eigenen Beziehungen, die es für nützlich halte, und habe die Absicht, auf diesem Weg fortzuschreiben. Man würde es auf französischer Seite für nützlich halten, wenn andere europäische Länder den gleichen Weg einschlagen würden, könne sie aber nicht in diesen Sinne beeinflussen187.“

Section 2: The Empty Chair Crisis

“Le marché commun agricole, ça ne peut pas rater ! Ou bien le Marché commun lui-même ratera […] Les autres, notamment les Allemands, tiennent à leur Marché commun; or, ils ne l'auront pas sans mon Marché commun agricole; donc je l'aurai.”

De Gaulle at the French Council of Ministers, 1 July 1964188

“Frankreich unternimmt einen konzentrischen Angriff auf die Europäische Kommission, sowohl auf ihre Rolle wie auf ihre personelle Zusammensetzung […] Das im Rom-Vertrag niedergelegte Prinzip der Mehrheitsentscheidung (Artikel 148) wird durch ein „liberum veto“ beseitigt […] Was die französische Haltung darüber hinaus besonders bedenklich erscheinen lässt, ist, dass diese Ziele mit der „Politik des leeren Stuhls“ erreicht werden sollen. Diese Politik stellt einen Vertragsbruch dar.”

Secretary of State Rudolf Lahr, 19 January 1966189

46Contrary to De Gaulle’s basic assumptions, the Court of Justice was transforming the European Communities to an autonomous and supranational order, more in the sense of the 1951 ECSC Treaty190 than of the 1957 EEC Treaties191. Yet, for France, the EEC should serve to protect her economic interests in the trans-Atlantic trade within GATT, implying a slower start of the Kennedy Round liberalisation talks, which opened in Geneva on 4 May 1964192. Similarly, de Gaulle saw the EEC as a pool to draw allies for his attack on the gold exchange standard, when he announced his request to physically exchange the dollars detained by the Banque de France for gold (Press Conference, 4 February 1965193).

47The Empty Chair Crisis (December 1965-January 1966) was an attempt to rein in the functioning of the EEC, stressing the state consent-based nature of the Treaties of Rome. Yet, French insistence on de facto veto powers could not meet with success. De Gaulle had secured the Common Agricultural Policy (CAP) in a bilateral deal with Adenauer (31 December 1963 agreement in the Council of Ministers), and, again, with his successor Erhard194 (15 December 1964195). Thus, it was of prime importance that France offered concessions to the other parties as well. Abandoning the letter and spirit of the Rome Treaties was incompatible with clinging on to the CAP. Again, in Lahr’s words:

48“Wir haben Große Sorge, dass die Gemeinschaft künftig mehr und mehr denaturiert wird, dass das Leben in der Gemeinschaft unerfreuliche Formen annehmen wird und dass die materiellen Opfer, die für Europa bisher schon gebracht worden sind und weiter gefordert werden, ihren politischen Sinn verlieren. Wir halten es für eine Widerspruch, einerseits für eine straff organisierte gemeinsame Agrarpolitik einzutreten, andererseits aber den politischen Gehalt des Rom-Vertrages auszuholen und die nichtagrarischen Bereiche zu vernachlässigen, mindestens aber ihre Zukunft im Ungewissen zu lassen196.“

I. Hallstein’s bold reform plan

“Il n'est pas imaginable que, le 1er janvier 1966, notre économie soit soumise à une règle de la majorité qui nous imposera la volonté de nos partenaires, dont on a vu qu'ils pouvaient se coaliser contre nous. Il faudra profiter de l'occasion pour réviser les fausses conceptions qui nous exposaient à subir le diktat des autres. Révisons cette stupidité!”

De Gaulle at the French Council of Ministers, 7 July 1965197

49At his 9 September 1965 press conference, De Gaulle characterized the European Commission as an “aréopage technocratique, apolitique, irresponsable”. Commission President Hallstein was the direct cause of this outburst198, as he had presented bold plans for reform to the European Parliamentary Assembly in Spring 1965 (23 March199). For the Commission, article 155 EEC, specifying its coordinating role with regards to national policies, was insufficient. Hallstein was in favour of a stronger structure, whereby the Parliamentary Assembly would directly control the Commission’s budget, as the Bundestag did in the German Federal Republic200.

50The issue of CAP financing would lead to a confrontation on the big lines: traditional international law-consensualism versus European law-activism. The Commission put forward its proposals for a financial settlement on 1 July 1965, linking the completion of the CAP’s financing to a far more structural decision to attribute custom revenue directly to the Community, under parliamentary control201. This “serment de jeu de paume202” was a bridge too far for de Gaulle, who abhorred of the idea of a supranational regalian “state” and had previously strongly opposed the accreditation of diplomats to the Commission. Handing over a genuine budget to the European Parliament (“l’Assemblée de Strasbourg”) would turn the intergovernmental Council of Ministers from legislator to a second chamber, equivalent to the German Bundesrat or the French Senate203.

51Moreover, the Treaty of Rome on the EEC foresaw in its article 148 that, from 1 January 1966 on, decisions within the Council of Ministers would be subject to Qualified Majority Vote204, abandoning the traditional interpretation of equality between sovereign states205. Consequently, the CAP’s financing agreement, which came at an end on 30 June 1965, could be revised by the Five other members states if no consensus was reached206. When bilateral Franco-German talks on CAP financing broke down in July 1965, de Gaulle decided to take advantage of Hallstein’s faux pas207, and to block the European institutions208.

II. “A la fin de l’année, on les ramassera à la cuiller209”: France against supranationality

“Mon cher ami vous nous proposez quelque chose que nous n’aimons pas : l’adhésion de l’Angleterre et pour nous le faire accepter, vous y ajoutez quelque chose que nous détestons encore beaucoup plus, qui est la supranationalité, donc vous n’avez aucune chance de nous convaincre.”

Jean-Marc Boegner (French permanent representative to the EEC) to Robert Toulemon, chief of cabinet to Robert Marjolin (Vice-President of the Commission)210

52On 6 July 1965, the French permanent representative at the COREPER quit his seat211. Two months later, Charles de Gaulle sent out a crossfire of verbal missiles against the supranational conception of European integration212. In private, the President equalled the introduction of Qualified Majority Voting in the Council of Ministers to the loss of French sovereignty213, called for a revision of the treaty, implying abandoning supranationality and QMV altogether, and for the dismissal of the whole Commission214.

53The chances of success were extremely reduced, not to say inexistent. France’s partners were shocked at this challenge to the very core principles behind the European treaties215. De Gaulle counted on bilateral talks between France and its EEC partners, completely bypassing their common institutions, thus, in practice applying the Fouchet Plan, which they had refused earlier216. France’s trump card was that it could not be missed in the European integration process, and the essential sovereign consent-underpinning of the European treaty217. However, making this argument hard required either an exit from the EEC (which implied abandoning the hard-fought CAP, which served as a counterpart to the German-desired customs union218), or a treaty revision (which required unanimity). If France did not go this far, its representatives’ absence at the Council of Ministers would not necessarily put a stop to EEC activity219. Moreover, French Presidential elections, which took place in the month of December, were a warning to de Gaulle, who fell short of a majority in the first round (44,64%) and was criticised by pro-integration centre candidate Jean Lecanuet (15,57%)220.

54Finally, an exceptional Council of Ministers was scheduled in Luxemburg for 13 and 14 January 1966, a good month after the French Presidential elections. This meeting initiated the final phase of discussions. France’s bilateral strategy had failed, since the other member states held on to the common forum to resolve the question221. Consequently, a treaty change to accommodate French wishes was excluded. Instead, de Gaulle counted on a multilateral protocol declaration, serving as an interpretation of the treaty222. Unanimity would function as the primary objective of EEC talks, irrespective of the possibility to apply QMV. Any state which felt threatened in its essential interest, could object to a potentially harmful decision. On 29 January 1966, at the end of a six month-rhetorical struggle, the five other member countries accepted an interpretative declaration on QMV223, as well as a French-inspired “heptalogue” of seven points to rein in the Commission’s activities224.

55The final text stated that, in case of a potentially harmful decision to vital interests of one of the Member States, the other Council members will elaborate a solution agreeable to all of them, and the interests of the Community. In the French interpretation, this amounted to the formal engagement to pursue discussions (and not proceed to a vote) until a final deal was reached225. In case of failure, disagreements persisted between France and the five others. The minutes of the meeting of the Foreign Ministers on 28 January 1966 mark the ambiguous character of the first compromise226:

56Couve de Murville: “Si le traité [de Rome] n’est pas changé, les règles sont aussi inchangées. Évidemment si vous passez outre, il y a conflit.”

57Werner [Luxemburg]: “Excluez-vous l’application du traité ?”

58Couve de Murville: “Je me tue à vous le dire depuis quinze jours.”

59Schröder: “Si après tous ces efforts, quelque chose reste non résolu, et que les cinq pays soient d’accord, le vote majoritaire est-il possible ?”

60Couve de Murville: “[…] La question de M. Schröder me paraît académique, car si les cinq passaient outre, ils feraient par définition des choses non raisonnables.”

61Schröder: “Que ferez-vous ?”

62Couve de Murville: “Ou bien nous accepterons, ou bien il y aura une histoire sérieuse […]. Il faut distinguer entre le droit et la politique. La Communauté doit fonctionner par accord. Le droit reste inchangé. Il y a les conséquences politiques.”

63The eventual compromise, an “agreement to disagree”, could be interpreted in all possible ways, to such an extent that the question could be asked if it had altered anything to the letter of the EEC Treaty227. More fundamentally, who was to identify a “vital national interest” able to temporarily invalidate QMV228 ? For France, an individual member state decided in a discretionary way. For Germany, on the other hand, fixing the threshold was a collective competence229. Why should the other states rely on a unilateral statement by one of the partners230? In the German view, even the horizontal, or traditional treaty-based strand of European integration, was submitted to the common obligation to coordinate economic policy, contained in Article 6 EEC231. A non-agreement on the non-application of the majority rule equalled its confirmation232. In any case, the sanction in case of an effective QMV-outcome against France could not be anything but a political one (cf. Couve de Murville: “il y aura une histoire sérieuse”). In theory, political agreements have their sanction in the reciprocal character of the agreement. In the case of the Luxemburg compromise, France was the sole beneficiary233.

64Yet, the political impetus of European integration had changed under the menace of a looming “Veto culture”234, which, in the short run, assured France not to be outvoted in agricultural issues, and Germany not to know the same fate in the Kennedy Round (GATT) negotiations235. On middle-term basis, discussions in Council, Commission or Parliament turned away from grand designs of further integration, and concentrated on technical matters236. In the short run, at a procedural level, France insisted on preliminary Commission contact with the member states through the permanent representatives at the council237. Equally, the Commission could not render public any document before their formal delivery to Member States238 and the presentation of letters of credence by third-party diplomats became the affair of the Council of Ministers, as well as the Commission’s president239.

65In the long run, the recognition of an essential national interest did not disappear, as Mosler thought it would240. Instead, it provided arguments for new member states, such as the United Kingdom (1972) to insist on concessions during the preparatory stage of Commission proposals241, and can still serve as a political pressure argument today, irrespective of the precarious legal status of the (non-)agreement242. Its finality, however, is not that of provoking a rupture, but of moving the need for compromise on essential interests forward in the institutional mechanics.

Section 3 : “L’intégration n’a rien de réciproque”243: France and NATO

“Rien ne peut faire qu’une loi, sans amendement, s’impose, quand elle n’est plus en accord avec les mœurs. Rien ne peut faire qu’un traité soit valable intégralement quand son objet s’est modifié. Et rien ne peut faire qu’une alliance peut rester telle quelle, quand ont changé les conditions qui étaient celles dans lesquelles elle a été conclue.”

Charles de Gaulle, press conference 21 February 1966244.

“General de Gaulle erklärte, Verteidigung sei nicht Strategie, sondern Politik, und die Politik eines Staates sei in erster Linie seine Verteidigung.”

Conversation de Gaulle/Erhard, Paris, 21 November 1963245

66NATO cancelled out France’s acquis at the UN Security Council: in New York, it held a position as a permanent member. At the NATO Council, la Grande Nation was just one of the club members. In Henry Kissinger’s words:

67“Given the nature of America's relations with the rest of the world, it seems strange that partnership should be said to be possible only among equals. The assertion that we can deal effectively only with countries of equal strength is not conducive to inspiring confidence among the great majority of the nations of the world which are weak246.”

68From his taking of office as Prime Minister in June 1958 on247, de Gaulle considered an exit, or, to be more precise, a reminder of the Atlantic Treaty’s exact clauses. This especially in the light of the Treaty’s expiring in 1969248. At first, de Gaulle proposed President Eisenhower (24 September 1958) to create a tripartite directorate of NATO, recalling the allied organisation during the war249. However, once this idea had vanished, France gradually distanced itself from the military organisation of the alliance250. The Republic retired its Mediterranean fleet from NATO-command (11 March 1959) and refused to have American bombers with nuclear warheads on its national territory (5 September 1960), arguing that the presence of nuclear weapons on French soil was incompatible with the lack of decision power on their use. Next, France refused to cooperate in a joint NATO air-alarm system, and, after the end of the Algerian conflict, did not integrate its returned divisions in the NATO system. From 1960 on, France started to work on its own “force de frappe”251.

I. Prelude to separation

“Que voulez-vous que j'en attende ? L'OTAN ne sert à rien: il ne peut rien s'y passer! Tout ça, c'est zéro, zéro, zéro. C'est fait pour faire vivre des fonctionnaires internationaux qui se font payer grassement à ne rien faire, sans verser d'impôt.”

de Gaulle on the May 1964 NATO summit252

69Initially, de Gaulle went for a “European” defence. When it became clear, with the failure of the Fouchet negotiations (1962) and the subsequent preamble to the Elysée Treaty (16 May 1963), that this would not work, de Gaulle steered on a firmly national course253. On 27 April 1964, de Gaulle withdrew the French officers from NATO’s naval command. Three months later, in his 23 July 1964 press conference, the General buried the German attempt to pool nuclear forces within NATO, by attacking the Multilateral Force (MLF), which would still mean that the Americans would decide on the effective use of nuclear power254. For the Federal Republic of Germany, “full integration255” meant access to participation on a vital defence issue. However, for France, it meant downgrading its autonomy. Consequently, although the idea had initially been put forward as a sign of America’s understanding of the Federal Republic’s feeling of discrimination256, Lyndon Johnson could only note the crisis within NATO, when he publicly abandoned the very idea of an MLF on 21 December 1964257. Yet, this did not appease France: in May 1965, de Gaulle announced that his country would not take part in planned joint NATO manoeuvers. The decision to leave the integrated military structure had been taken by de Gaulle and Couve de Murville, ahead of the December 1965 Presidential elections258.

II. Back to the treaty clauses ? French unilateral interpretation

70France did not leave the USA in a big suspense anymore: from 21 February (press conference) to the formal announcement on 31 March 1966, the retreat from any peri-contractual NATO structures (Military Committee, Permanent Group, Saceur259, Saclant260, Chinchan261) was formalised262. Alluding on the clausula rebus sic stantibus in international law263, de Gaulle argued that anything beyond a contractual alliance could not be binding anymore for France. Invoking national independence and sovereignty, NATO-troops were asked to leave the French national territory264. From a legal point of view, the decisions (unanimously) taken by the Atlantic Council, allowing for the creation of the commandment structures after the Korean War, were considered as merely indicative, and thus insufficiently explicit to limit French sovereignty265.

71“Flabbergasted266” American diplomats saw De Gaulle as a “twentieth-century Don Quixote267”. Rationally looked at French (or British) independent fire power, a European nuclear defence without American participation would amount to “eine Kombination von Zwergen268”. Moreover, France did never question its fundamental allegiance to the United States in the world conflict, and –since 1776- had never engaged in a military confrontation with its ally overseas269. Finally, France was not deprived of its veto right within the NATO structures, which foresaw the Atlantic council’s supreme authority. Couve de Murville declared at the Assemblée Nationale that, indeed, the problem did not reside with the absence of a veto, but with the incompatible interests of the United States, which, as a global power, had potential casus belli, well outside of France’s reach:

72“"Il ne s'agit pas tant de pouvoir faire ce que l'on veut que de ne pas être entrainé à faire ce que l'on ne veut pas.270

73However, with regard to the very restricted probability of an actual military confrontation, Cold War-defence issues boiled down to psychological issues271. Both Washington’s and Moscow’s enormous military build-up could be termed “apocalyptic, and thus insignificant272”. The perception of a state’s capability to keep an aggressor at bay was not an absolute, but a relative phenomenon. An expensive investment in nuclear capabilities was not designed to wipe out any potential aggressor, but to affirm a minor power’s existence on the world stage in case of a conflict between the two big powers273. Consequently, the key issue for the two superpowers was to ensure their allies had confidence in the over-arching strategy. A purely theoretical or technological monopoly was insufficient, since the superpower would always intervene in case of a conflict involving its main competitor274. In the French case, “measures contradictory to those of the US were thus in a sense supported by the American nuclear umbrella275”.

74De Gaulle had to have recourse to bilateral negotiations with the Federal Republic to station troops on its territory276. Isolated from Germany as well277, the French President publicly castigated Ludwig Erhard’s government (28 October 1966 press conference). Yet, in turn, Erhard could not afford to be portrayed an Einzelgänger within Germany278. Konrad Adenauer, who had retired from public office in 1963, had launched his attack far earlier, almost from the moment he resigned as Chancellor279. From the start of his tenure on, Erhard had the impression to be more supported by outside partners than within his own party280. Irrespective of the CDU/CSU-FDP coalition’s electoral victory in October 1965, Adenauer even asked for its replacement by a Grand Coalition with the SPD (3 January 1966)281. The day before de Gaulle’s public invective, the liberal ministers had resigned from Erhard’s government, leading to his personal exit (1 December 1966). The new Chancellor, Kiesinger, dropped his support for de Gaulle’s other opponent, Walter Hallstein, who could not preside over the newly merged European Commissions282.

75De Gaulle’s attitude towards NATO has cast its long shadow on French Foreign policy283, as well as on the questions discussed within the alliance284. At the time of the 1966 decision, public opinion did not support de Gaulle’s NATO stance285. It took France until the Sarkozy presidency (2007-2012) to reintegrate the military structures286.


76De Gaulle’s perturbing diplomatic action had a double objective. On the internal front, he strived to restore national pride after the Algerian imbroglio, and to mark a turn-around for the French economy. On the external front, he wanted to recall the perpetual rules of international relations to the hegemonic power within the Western bloc. Both were intimately linked287. The United States, imbued with a missionary conviction that their action would ultimately lead to stability and peace through the rule of law288, had to be reminded that the international society functioned as an arena. For de Gaulle, every state (including the new ones, created in the wave of decolonisation), had a legitimate claim to further its own national interest, irrespective of supranational order289. The order propagated by the Americans entailed a consensus around values which de Gaulle found naïve. For de Gaulle, there was no genuine “common international interest” behind the structure of the post-1945 international organizations, but merely badly disguised attempts to manipulate allies290. A Europe of States, “from the Atlantic to the Ural”, did not distinguish between East and West, whereas, for Washington, including the former would be impossible291.

77Yet, distinct sets of values and geopolitically determined interests did not necessarily entail armed confrontation, but reflected a realist perspective on international relations. Polycentrism, echoing the horizontal order after the Peace of Utrecht (1713292) or the 19th Century Concert of Europe, was achievable. Not in terms of physical capability, but in terms of political decision centres, where international discourse could be mastered independent from the leading ally293. De Gaulle was convinced that his opinion was so self-evidently internally valid and reflected structural necessity for the international system, that history would prove him right294.

78The jurist’s position in specific political discourse is very close to complete apology. De Gaulle saw political will as the prima donna of international lawmaking (as the Luxemburg compromise, and the Fouchet proposals demonstrate) and relied on the unilateral interpretation of agreements (cf. the NATO decisions of 1966). Yet, de Gaulle’s advocacy of the international arena as one of confrontation did entail a minimum consensus on values. In itself, the promotion of a multipolar and egalitarian international society is a normative principle, relying on reciprocal consent and advantage, inextricably linked with a European tradition of diplomatic culture, which functions as the nurturing and mutually influenced infrastructure of legal discourse.

Aufsatz vom 12. März 2015
© 2015 fhi
ISSN: 1860-5605
12. März 2015

  • Zitiervorschlag Frederik Dhondt, Charles de Gaulle, Anti-Hegemonic Discourse and International Law (12. März 2015), in forum historiae iuris, https://forhistiur.net2015-03-dhondt